S Court : Defections ‘erode’ constitutional norms
ISLAMABAD: The Supreme Court has held that defection by members of a political party tend to disrupt, if not destroy, and demolish “healthy” political competition and rivalry in a parliamentary system.
The 95-page majority judgement on a presidential reference pertaining to the interpretation of Article 63A — known as the defection clause — also stated that while the constitutional system can accommodate the occasional maverick or eccentric, “to turn the exceptional into the normal is to turn the system on its head”.
Defections, the judgement authored by Justice Munib Akhtar states, undermined and damaged the normative moorings of the Constitution and could inflict a deathly blow to its foundational principles, because would no system can survive such treatment for long.
By a majority of three to two, the apex court on May 17 held that since Article 63A ensures fundamental rights of parliamentary party, a vote cast contrary to the party line should not be counted.
However, Justice Mazhar Alam Khan Miankhel and Justice Jamal Khan Mandokhel, in their dissenting notes issued on July 8, said unbridled power to the prime minister in determining the constitutional and fundamental right of his party parliamentarians would result in a ‘culture of civil dictatorship’ and that it was the makers of the Constitution who could remove the cancerous tumour of defection through a surgical operation.
In the detailed judgement, Justice Akhtar wrote that if the vote of a defector was disregarded, it would be a huge deterrence.
The verdict also holds that defection by party members negates the necessary attributes and qualities of honesty, trustworthiness, sagacity and skill, which parliamentarians of different political parties must possess and adhere to. “The one who defects or attempts to do so or seeks to engineer or bring about a defection expresses contempt for these qualities,” Justice Akhtar writes. Even if a member of a parliamentary party initiated such a move and approached an external force or outside party, there was a good chance of his being rebuffed and if there was a “marketplace” for defectors, the integrated approach that applied on a holistic understanding and application of Article 63A (defection) would have a “chilling effect” on the “buyers”, and not just the “sellers”, the judgement added.
The parliamentary party could not delegate, transfer, assign or “outsource” the power conferred on it to anyone, including the party head, it elaborated, adding that no government — formed on a party basis — would ever be able to carry out its legislative or executive agenda if, for each vote to be cast in a house, it has to forever run after its parliamentarians.
Healthy competition
Defections are the antithesis of fundamental rights, Justice Akhtar observed, adding defections – a sine qua non (essential condition) for Article 17(2).
Defections are an attack on the integrity and cohesion of the political parties and represent in an acute form the unconstitutional and unlawful assaults, encroachments and erosions which constitute a direct negation and denial of the rights encompassed in Article 17(2), the judgement said. There could be no “healthy” operation of political parties if defections were not thwarted and defeated, Justice Akhtar observed.
“No wonder then that defections have been likened to cancer,” Justice Akhtar observed, adding defector’s proscribed vote sought to disturb and materially and adversely alter, the balance among the political parties, which must necessarily be maintained if they were to compete and vie for political power in the manner contemplated by Article 17(2).
Referring to imposing a lifetime ban on the one who defects, the judgement explained that since Article 63(1)(p) confers the necessary competence on parliament, the matter must be best left to the legislature.
S Court : Defections ‘erode’ constitutional norms
‘All doors of defection closed’
Reacting to the judgment, senior counsel Hafiz Ahsaan Ahmad Khokhar said the verdict would have a long-lasting effect on the parliamentary system and would close all doors of defection in assemblies rather would promote the stability in our political system.
The verdict also empowered the majority in members of the parliamentary party that would try to control the unbridled authority of the party head as well in future with reference to application of Article 63A and has tried to thwart and defeat this menace in political and parliamentary culture of Pakistan, he said.
A senior counsel on condition of anonymity said the verdict appeared to be a treatise in law and the greater surprise was not what the judgement said but what it failed to omit.
The judgement tried to obfuscate, spin and deflect but the facts were simple; there was a distinction, with a difference, between what the Constitution was and what it ought to be, he pointed out.